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There's been some excellent analysis of the FISA bill around the blogosphere. I particularly like Technosailor for a clear, concise, and lay person's view. For the lawyers, and people who've been deep in the weeds on this legislation enough to have a solid grasp of the terminology, Balkinization has featured a series of posts by David Kris, and an excellent summation and response by Marty Lederman. Julian Sanchez has an excellent political overview at The American Prospect, as does Kevin Drum. And it goes without saying, everything of Glenn Greenwald's

They all detail some of the main points, also included on Sen. Feingold's Fact Sheet. Here's a basic summary, but all of the above resources provide the depth of what's really wrong here.

  • On retroactive immunity, the bill virtually guarantees it, despite the fig-leaf of a district court review.
  • In their infinite wisdom, Hoyer and the negotiators set the bill to sunset in the fall of 2012--just before the next presidential election. This bad bill should not be in effect for that long, and shouldn't be subject to election year politics, again.
  • The protections against reverse targeting are inadequte--the guidelines for targeting someone in the U.S. are not subject to judicial review, or the requirement of a court order for that surveillance.
  • The bill doesn't prohibit bulk collection--"the collection of all international communications into and out of the U.S. to a whole continent or even the entire world."
  • The bill contains a far too broad "exigency" exception to the idea of FISC exclusivity--the Attorney General or DNI can certify that they don't have time to get a court order.
  • Even if the FISC determines after that fact that the surveillance violated the law, the government can still keep and use any of the information it obtains under those illegal warrants.
  • The bill doesn't provide additional checks and balances for Americans at home whose international communications are obtained because they are communicating with someone overseas.

All that said, here's my favorite provision included in the legislation [warning, that's a 114 page pdf], Sec. 110, part 4 of Title I (p. 81):




(4) WEAPON OF MASS DESTRUCTION.—Such section 101 is amended by adding at the end the following new subsection:
‘‘(p) ‘Weapon of mass destruction’ means—
‘‘(1) any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;
‘‘(2) any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;
‘‘(3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United States Code) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or
‘‘(4) any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.’’.

I wonder how many Senators blithely casting their lot with this bill realize that they're redefining warfare.

There's every chance that the immunity provisions in the bill are unconstitutional. But Congress doesn't know because no Judiciary Committee hearings were held to vet that portion of the bill. Nor were any Defense Committee hearings held to vet this WMD provision.

That's what happens when the oversight muscle of Congress becomes so atrophed. They don't even conduct oversight of themselves. And they don't know what they're voting for.

However, it looks as though Senate leadership is trying to delay the vote on the bill until after recess.

Durbin, D-Ill., told reporters Thursday that Democratic leaders plan to wait until July take up the bill, which rewrites the Foreign Intelligence Surveillance Act, or FISA. Durbin said that Sen. Russ Feingold, D-Wis., a leading opponent of the bill, has asked that the Senate delay consideration of the bill.

Perhaps our Senators can take this opportunity to spend some time actually reading what they're going to be voting on.

Update: The link to Sen. Feingold's fact sheet was an old one. It has been updated with the correct link.

Originally posted to Daily Kos on Thu Jun 26, 2008 at 12:00 PM PDT.

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